Mundell (Aug. 31) moved the Court to dispense with service of a citation upon the person unknown to the petitioner and upon Major Power, upon an affidavit alleging such ignorance, and the fact of Major Power's death.

[The JUDGE ORDINARY.-It seems singular that a gentleman in Mr. Tollemache's position should be ignorant of the name of the adulterer.]

It appears from the petition that Mr. Tollemache obtained a divorce in Scotland, on the ground of adultery with a person named Williams. By the law of Scotland, when the name of the adulterer appears in the proceedings for a divorce, the person offending cannot marry with the person so named. It is probable that to avoid this the name me "Williams" was an assumed name, and the affidavit alleges that it is believed Power and Williams are identical.

The JUDGE ORDINARY.-That may account for it. You can take the order you ask, as there is reasonable evidence that Power is dead and Williams unknown; but the case has advanced so far, that you may be met when before the full Court by the objection, that at this stage of the proceedings I have not power to excuse you from making a co-respondent, and that you ought to begin de novo.

Motion granted.

Mundell afterwards, ex abundanti cautelá, went before the Judge Ordinary in chambers, and obtained leave to issue and serve a fresh citation upon the original petition, which citation was issued and served accordingly (1).

(1) In Molyneux v. Molyneux, Boyd, and Rawlinson, which was a suit for dissolution of marriage, on the ground of the adultery of the wife, alleged to have been committed with both Boyd and Rawlinson, Dr. Spinks (Nov. 9) moved the Court to

A petition for dissolution of marriage alleged that the wife had committed adultery with A, who was made a co-respondent, and in the fifth paragraph charged her with having committed adultery with a person unknown. On motion that the petitioner might be excused from making such unknown person a co-respondent, or be allowed to strike the fifth paragraph out of the petition, the Judge Ordinary held, that either might be done.

Quære-Whether, as there was one corespondent, there was any necessity for the application.

This was a petition for dissolution of marriage by reason of the wife's adultery with the co-respondent Vernon.

The respondent and co-respondent appeared, but put in no answers; and on the 13th of July the Judge Ordinary directed that the petition should be proved by oral evidence before the Court.

The fifth paragraph of the petition stated, "That in or about the year 1846, and in some time of that year, and at some place or places, and with some person to your petitioner unknown, the said A. M. Hunter committed adultery, and a bastard female child, the offspring of such adul

order that a citation should issue with a blank instead of the Christian name of Rawlinson, on an affidavit that he had gone to Australia, and that the petitioner did not know, and could not ascertain, his Christian name. And this motion was granted.

In Marsden 'v. Marsden, Dr. Spinks (Nov. 13) moved that the petitioner, the husband, might be excused from making a co-respondent, upon an affidavit of the death of the alleged adulterer, and also to direct the mode of hearing the petition, as the respondent had not appeared. The JUDGE ORDINARY granted the first part of the motion, but refused to give directions as to the mode of hearing, saying, "I think the petitioner is not in a position to call for an appearance until he has been excused by the Court from making a corespondent."

tery, was born of the body of the said A. M. Hunter, on or about the 26th day of January 1847, at Portsea, in the county of Southampton."

The affidavit of the petitioner stated these facts, and that he had no means of discovering, and was totally ignorant of who or what the party was who in the said fifth paragraph of the petition was charged with having committed adultery with the said A. M. Hunter, and that in consequence no citation had been issued or could be served on such party for the purpose of making him a co-respondent to the said suit.

-

Mundell now moved the Court to dispense with the service of a citation upon the person unknown mentioned in the fifth paragraph of the petition, or to permit the said paragraph to be struck out of the petition. - In Tollemache v. Tollemache (1) it was held, that where the adulterer was unknown, it was necessary for the petitioner to apply to the Court to be excused from making a co-respondent, in order that the Court might be satisfied that he was unknown. I presume, therefore, that it is necessary to make this application.

The JUDGE ORDINARY. The circumstances in Tollemache v. Tollemache were different. There the petitioner had issued a citation without making either of the alleged adulterers a co-respondent, or applying to be excused from making one. The question there was, whether he could properly proceed upon that citation, the leave of the Court to be excused from making a co-respondent not having been obtained before the issue of the citation. Here, you have made Vernon a co-respondent, and have served him with a citation and copy of the petition. There is nothing in the statute 20 & 21 Vict. c. 85. which makes it necessary to proceed against more than one adulterer. I will grant either branch of your motion.

This was a suit for dissolution of marriage, on the ground of the husband's adultery, cruelty and desertion.

A motion having been made to dispense with personal service on the husband, on the ground that he had gone to Australia in 1851, and the petitioner did not know where he was, the Judge Ordinary rejected the motion, no attempt having been made to discover him.

Against this order the petitioner appealed.

Dr. Addams (Dr. Spinks with him), for the appellant. The petitioner does not even know that the respondent is in Australia. He went to Port Phillip in 1851, and has not since been heard of.

Per Curiam.-A suit for dissolution of marriage is a matter of very grave importance. Its consequences are so serious that we should be very cautious of allowing the petitioner to proceed in the absence of the respondent, who, by section 56, would be absolutely precluded from appealing against the decree after the lapse of three months from its date. In this case no attempt has been made to discover where the respondent is. The petitioner knows in what ship he sailed, and where he went to. At least, inquiries might have been made; if they were made at Port Phillip, something might have been heard of him. He may be there, and if he had notice might appear. It would be very dangerous to allow a petitioner to proceed in the absence of the respondent merely because he is out of the Queen's dominions, and the petitioner does not know where he

* Coram Cockburn, C.J., Wightman, J. and the Judge Ordinary.

Dissolution of Marriage Dispensing with Service of Citation and Copy of Petition-20 & 21 Vict. c. 85. s. 42.-Rule 10.

In a suit for dissolution of marriage on the ground of the wife's adultery, the affidavits, in support of a motion to dispense with personal service of citations and copies of the petition, stated that the wife had deserted her husband at Liverpool in August 1857; that there was reason to believe that she afterwards lived in this country with Q, the co-respondent, as his wife; that in October 1857 two persons passing under the name of Mr. and Mrs. Q. sailed from London for Australia, and afterwards landed in Melbourne; that there was reason to believe that the said Mrs. and Mr. Q. were the respondent and co-respondent; that inquiries had been made in Melbourne of the agent of the ship in which those persons went to Australia, and of other shipping agents there, also of the inspector of police at Sydney, but that no trace of them or of their movements could be discovered. The Judge Ordinary, upon the above affidavits, dispensed altogether with service on the respondent and corespondent.

Semble-that if there had been any certain information as to their movements in Australia, further inquiries would probably have led to their discovery, and would have, therefore, been necessary.

(1) Applications have from time to time been made to the Judge Ordinary to dispense with personal service on respondents or co-respondents, on the ground that they had gone abroad, and that the petitioner did not know where to find them. These applications have invariably been rejected where no attempt has been made to discover the parties, and the Judge has directed that citations should be sent out and efforts made to serve them.

This was a suit for dissolution of marriage, on the ground of the adultery of the wife.

Dr. Swabey moved the Court to allow the petitioner to proceed to proof of his petition without service of citations and copies of the petition upon the respondent and co-respondent.

From the affidavit of the petitioner, verifying the petition, it appeared that the marriage took place in November 1853, and that the parties had resided at various places in Liverpool and the neighbourhood; that the petitioner was the master of a sea-going steam-vessel, and was necessarily much absent from home, usually seven or eight weeks consecutively; that, on his return to Liverpool from one of his voyages, at the end of September 1857, he found a letter from his wife, dated the 30th of August 1857, in which she stated "She had never been true to him since three months after the marriage; that she loved another man, and that she had left the petitioner, and never intended to trouble him again; that she had sold the furniture in their house, and intended with the proceeds to put herself in some business, so as to live quietly away from the world, where she was not known; that she would never take his name, and to him, and every one she ever knew, was dead;" that, from information received, the petitioner had reason to believe that the respondent had gone from Liverpool, at the end of August 1857, in company with the co-respondent, to London, and, after living with him there, had sailed with him from Gravesend, for Melbourne, on the 1st of October 1857, in the North America.

The solicitor for the petitioner deposed that, from inquiries he had made he had reason to believe that the respondent and Quaile sailed from Gravesend in the North America, for Melbourne, on the 1st of October 1857; that, on the 10th of May 1858, he transmitted to Messrs. S. & K, solicitors at Melbourne, citations and copies of the petition for service on the respondent and co-respondent; that on the 19th of October he received a letter from Messrs. S. & K, dated Melbourne, August 16, 1858, in which they stated

that they had ascertained that the list of passengers of the North America included the names of Mr. and Mrs. Quaile, and that they had inquired of the agents of that vessel if they could furnish the whereabouts of the said Mr. and Mrs. Quaile, but they stated they could afford no information; that they had applied to various shipping agents with the like result, and were unable to discover the least trace of them or hear anything of their movements, and that they had written to the inspector of police at Sydney for information about them without success.

James Collins, the master of the North America, deposed that a man and woman, giving their names as Mr. and Mrs. Quaile, took passages in his ship, and sailed in her from Gravesend, on the 1st of October 1857, for Melbourne; that they appeared to be man and wife, and were so treated; that they landed at Melbourne, in January 1858, and that he saw them there several times.

Dr. Swabey. The letter of the 30th of August 1857 shews that the wife had determined to leave her husband and to hide her whereabouts from him: every endeavour having been made to trace them in Australia, whither there is reason to believe they have gone, but without success, this is a case for dispensing altogether with service, under Rule 10.

The JUDGE ORDINARY.-I think that I

shall be justified in dispensing altogether with service of the citation and copy of the petition. The petitioner's case really stands thus:-His wife deserted him, and there is evidence that she has committed adultery. There is reason to believe that she afterwards went to live with the corespondent as his wife; efforts have been made to find them in this country, but without success. Further, there is reason to believe that, in October 1857, they went together to Australia and landed at Melbourne; inquiries for them have been made at that place and elsewhere in Australia, but no trace of them has been found. If you had had certain information as to any of their movements in Australia the case would have been different; and without further inquiries, which would probably

Dissolution of Marriage Dispensing with Personal Service-20 & 21 Vict. c. 85. s. 42.-Rule 10.

A wife filed a petition for dissolution of marriage, but was unable to effect personal service of the citation, &c., in consequence of the respondent having gone abroad, but whither she knew not. A. knowing where the respondent was, though refusing to give his address, forwarded to him, by post, an office copy and a plain copy of the petition, and two copies of the citation. The respondent returned, by post, to A. the plain copy of the petition and one of the copies of the citation, on which were indorsed memoranda signed by him, acknowledging the receipt of the office copy of the petition, and also a copy of the citation. The respondent not having entered an appearance, the Judge Ordinary allowed the petitioner to proceed without further service.

This was a suit instituted, by the wife, for dissolution of marriage, on the ground of adultery and desertion.

Macqueen, on the 10th of May, moved the Court to dispense with personal service of the citation and copy of petition on the respondent, on the ground that he had gone abroad, and that the petitioner did not know where he was, and to allow substitutional service on Benjamin Chandler, his brother, who had undertaken to forward to him the citation and a copy of the petition. The Judge Ordinary then declined to make the order; but suggested that the citation and a copy of the petition

should be sent to the brother, that he might forward them to the respondent (1).

In compliance with this suggestion, the solicitor for the petitioner, on the 14th of May, sent in a letter to Benjamin Chandler the original citation and two copies of it, and also an office copy of the petition, and two plain copies of it, requesting him to forward by post to the respondent the two copies of the citation, and also the office copy and one of the plain copies of the petition, with directions that he should sign his name at the foot of the memorandum indorsed on one of the copies of the citation, and also of the memorandum indorsed on the plain copy of the petition, and return the same so signed to Benjamin Chandler. He also requested Benjamin Chandler to return to him at once the original citation, and one of the plain copies of the petition, after signing the memorandum of receipt indorsed on each.

Benjamin Chandler, in accordance with this request, returned the latter documents at once duly signed, and forwarded the others to his brother by post on the 19th of May, with the required directions as to their return.

On the 31st of August Benjamin Chandler received, by post, from the respondent the plain copy of the petition, with the indorsed memorandum of the receipt of the office copy of the petition, signed by the respondent, and also one of the copies of the citation, with the indorsed memorandum of its receipt, signed by him. On the same day these documents were forwarded by Benjamin Chandler to the solicitor for the petitioner, and duly received by him.

On the 17th of November search was made in the book for entering appearances in the Registry; but the respondent had not appeared.

The above facts were deposed to by Benjamin Chandler and the solicitor to the petitioner.

Macqueen moved the Court to dispense with further service.-It appears from the affidavits that an office copy of the petition, and a copy of the citation,

(1) See Chandler v. Chandler, 27 Law J. Rep. (N.S.) Prob. and M. 35.

This was a suit for a judicial separation by reason of the cruelty of the husband.

The third paragraph of the petition stated "that, on the 26th day of July 1848, and other days between that day and the 24th day of July 1858, the respondent, at Lowestoft, in the county of Suffolk, was guilty of cruelty to the petitioner."

Dr. Spinks.-The third paragraph of the petition should be amended by a statement of some specific acts of cruelty. A general averment of cruelty is not sufficient, legal cruelty being a matter of degree, and not a simple act like adultery. The time and place of the commission of these acts should also be stated.

Macqueen, for the petitioner.-It might be better that the acts of cruelty should be specified; but there is an impression that your Lordship has a great objection to prolixity, and desires that the petitions should be very concise, and that Form No. 3, given in the Schedule to the Rules, should be followed as closely as possible.